Cakes are going to the Supreme Court

[Meadmaker]

The Supreme Court announced today that they will take up the case of a Colorado baker next term. The baker, who makes custom cakes for weddings, refused to make a cake for a same sex marriage. The Colorado Civil Rights Commission determined that the baker was in violation of the Colorado civil rights laws, which bar discrimination based on sexual orientation.

The baker's case is that the cake is an artwork, and therefore an act of expression. You cannot be compelled against your will to participate in an expressive act that violates your religious beliefs. In similar cases it has also been argued that creating something for use in a ceremony is equivalent to participating in the ceremony, so compelling someone to do something for the ceremony would be to compel someone to participate in a ceremony that violates their religious beliefs. I don't know if the baker's lawyer's used that line of reasoning, or whether they stuck with the freedom of expression angle. (I haven't read the appeal's court briefs or opinions.)

The question before the court will be at what point commercial activity becomes protected speech. The baker has to convince the court that his interest to avoid being compelled to participate in expression that is against his will is not overridden by state law which is written to protect people from discrimination.

I don't know where the court will stand on this issue. There are a lot of factors at work here. The specific case at work here is less significant than a general principle. If they rule in favor of the baker, people might claim that cooking a meal or even setting a table setting is an act of expression, and they can't be compelled to take part. This would effectively eliminate the protections that the civil rights laws are meant to protect. On the other hand, if they rule against the baker, the great fear among the religious right is that preachers or clergy might be compelled to participate in same sex marriages, the theory being that since they accept a fee for their services, they are effectively a business, and cannot turn away people because of their sexual orientation. Similar cases have actually already occurred in some cases, so the fear is not groundless.

Regardless of which way the court rules, the implications will be far greater than just this baker.

For those on the left side of this case, there was a great sigh of relief when, after announcing that they would take this case, Justice Kennedy did not announce his resignation. Kennedy could once again provide the swing vote, but a Trump appointed replacement could be assumed to vote in favor of the baker.

 

[applecorped]

Humble pie is coming

 

[The Great Zaganza]

obviously a solicitation to be bribed in the form of pastry, cookies, biscuits and cakes...

 

[Hlafordlaes]

Humble pie is coming

Meaning, sigh, exactly what? Will you be celebrating the fact that I, as, say, a Roman Catholic. can now refuse you any service for being a Protestant heretic, clueless about how we put your bible together for you, and how we are the only ones representing authentic apostolic succession, you being self-confessed, lying and unholy losers?

Shall we now be so clueless, so lacking in context and history, that we must relive the wars and rewrite the Treaty of Westphalia? Is it really asking too much that GOPers read, I dunno, something with bearing on an issue once in a blue moon?

 

[Darat]

I find it astonishing how politicised your supreme court is, it almost appears at times that it is about finding any legal argument to support a political agenda rather than an attempt at an objective legal decision.

 

[The Great Zaganza]

I find it astonishing how politicised your supreme court is, it almost appears at times that it is about finding any legal argument to support a political agenda rather than an attempt at an objective legal decision.

At least they look for a legal loophole to support their point of view - better than most citizens of Trumpistan who believe that something must automatically be right if their Dear Leader says so.

 

[ddt]

The Supreme Court announced today that they will take up the case of a Colorado baker next term. The baker, who makes custom cakes for weddings, refused to make a cake for a same sex marriage. The Colorado Civil Rights Commission determined that the baker was in violation of the Colorado civil rights laws, which bar discrimination based on sexual orientation.

The baker's case is that the cake is an artwork, and therefore an act of expression. You cannot be compelled against your will to participate in an expressive act that violates your religious beliefs. In similar cases it has also been argued that creating something for use in a ceremony is equivalent to participating in the ceremony, so compelling someone to do something for the ceremony would be to compel someone to participate in a ceremony that violates their religious beliefs. I don't know if the baker's lawyer's used that line of reasoning, or whether they stuck with the freedom of expression angle. (I haven't read the appeal's court briefs or opinions.)

The question before the court will be at what point commercial activity becomes protected speech. The baker has to convince the court that his interest to avoid being compelled to participate in expression that is against his will is not overridden by state law which is written to protect people from discrimination.

I don't know where the court will stand on this issue. There are a lot of factors at work here. The specific case at work here is less significant than a general principle. If they rule in favor of the baker, people might claim that cooking a meal or even setting a table setting is an act of expression, and they can't be compelled to take part. This would effectively eliminate the protections that the civil rights laws are meant to protect. On the other hand, if they rule against the baker, the great fear among the religious right is that preachers or clergy might be compelled to participate in same sex marriages, the theory being that since they accept a fee for their services, they are effectively a business, and cannot turn away people because of their sexual orientation. Similar cases have actually already occurred in some cases, so the fear is not groundless.

Regardless of which way the court rules, the implications will be far greater than just this baker.

Do you have cites for cases where churches have been compelled to perform gay marriages or some such?

I don't understand how asking a fee would be the overriding factor in determining whether we're talking about freedom of religion. After all, for the church ceremony, the church costs money, the pastor gets a wage, etc., etc., so it's only logical they ask a fee.

Wouldn't it be a much more logical criterion to simply ask whether the business is religious in nature? So, a church may indeed discriminate, but a supermarket not, nor a hobby supply shop (I think the idea that HobbyLobby may discriminate with their health plan because the owner is a religious bigot is outrageous).

(and personally, I would legislate that religious institutions must carry a disclaimer on all their correspondence that they discriminate, e.g.:
The Roman Catholic Church - discriminates against women and LGBT since 35AD
The Southern Baptist Convention - discriminates against women, LGBT and blacks since 1845)

And as to the angle of "expression", I note that the bakery in question, Masterpiece Cakeshop, simply has 33 ready designs on their website to choose from. The "art" part already happened; adding the two names on it is purely mechanical and involves no "expression".

 

[ponderingturtle]

Hmm I wonder if this creative effort will rewrite the Newman vs Piggie Park that found that religious beliefs were not enough to exclude blacks from your restaurant. Barbecue is a creative endeavor after all so it really should count too.

 

[C_Felix]

The baker from Colorado offered to sell the couple a pre-made cake from his collection, not just make one specifically for them.

I wonder, who made the pre-made cake from his cooler/collection. If he made it, isn't that slightly hypocritical?

 

[The Don]

I predict that the SCOTUS will split 5-4 and the baker will win

I anticipate an 8-year process of rolling back civil rights legislation whilst President Trump is in office.

 

[sphenisc]

The baker from Colorado offered to sell the couple a pre-made cake from his collection, not just make one specifically for them.

I wonder, who made the pre-made cake from his cooler/collection. If he made it, isn't that slightly hypocritical?

Not if their problem is with the "expression" element. Presumably the pre-made cakes have expressions they find acceptable. The custom-made one, not so much.

 

[ponderingturtle]

I predict that the SCOTUS will split 5-4 and the baker will win

I anticipate an 8-year process of rolling back civil rights legislation whilst President Trump is in office.

Oh more than 8 years, given what he will do to the court.

 

[ddt]

Oh, and the same baker undermined his "sanctity of marriage" argument when he made cake for two dogs. From the ACLU:

Phillips admitted he had turned away other same-sex couples as a matter of policy. The CCRD’s decision noted evidence in the record that Phillips had expressed willingness to take a cake order for the “marriage” of two dogs, but not for the commitment ceremony of two women, and that he would not make a cake for a same-sex couple’s wedding celebration “just as he would not be willing to make a pedophile cake.”

Hypocrite.

 

[BobTheCoward]

Oh, and the same baker undermined his "sanctity of marriage" argument when he made cake for two dogs. From the ACLU:


Hypocrite.

How is that hypocrisy?

 

[BobTheCoward]

I find it astonishing how politicised your supreme court is, it almost appears at times that it is about finding any legal argument to support a political agenda rather than an attempt at an objective legal decision.

That is the natural outcome of not having parliamentary sovereignty. Since some of the powers of a parliament are taken up by the US supreme Court, that politicizes it.

 

[Meadmaker]

Do you have cites for cases where churches have been compelled to perform gay marriages or some such?

I don't understand how asking a fee would be the overriding factor in determining whether we're talking about freedom of religion. After all, for the church ceremony, the church costs money, the pastor gets a wage, etc., etc., so it's only logical they ask a fee.

Wouldn't it be a much more logical criterion to simply ask whether the business is religious in nature? So, a church may indeed discriminate, but a supermarket not, nor a hobby supply shop (I think the idea that HobbyLobby may discriminate with their health plan because the owner is a religious bigot is outrageous).

(and personally, I would legislate that religious institutions must carry a disclaimer on all their correspondence that they discriminate, e.g.:
The Roman Catholic Church - discriminates against women and LGBT since 35AD
The Southern Baptist Convention - discriminates against women, LGBT and blacks since 1845)

And as to the angle of "expression", I note that the bakery in question, Masterpiece Cakeshop, simply has 33 ready designs on their website to choose from. The "art" part already happened; adding the two names on it is purely mechanical and involves no "expression".

An ordained minister in Couer d'Allene Idaho who ran a "wedding chapel" was informed he was in violation of antidiscrimination laws when he refused to perform a same sex marriage. (He was willing to let them use the facility, just not perform the service himself.)

A church in Grove City, New Jersey lost a tax credit when they refused to rent a building for a same sex commitment ceremony.

A church in Massachusetts was informed that because they ran occasional spaghetti dinners that were open to non-parishoners and a fee was charged, they were therefore a provider of "public accommodation" and subject to all anti-discrimination laws. (Don't know all the details, but somehow transgender bathrooms came into the picture.)

In all of those cases, some sort of legal machinations were made, and the final resolution wasn't all that bad, but any of those legal actions would have been unthinkable 20 years ago. What is going on in America now is that there are a group of activists trying to push the envelope as far as they can, and a group of conservatives trying to hold the line or push it back to where they think it ought to be. Everyone knows that each new exchange in the legal battles is an opportunity to move an agenda forward, or backward, depending on your perspective.

 

[Meadmaker]

Meaning, sigh, exactly what? Will you be celebrating the fact that I, as, say, a Roman Catholic. can now refuse you any service for being a Protestant heretic, clueless about how we put your bible together for you, and how we are the only ones representing authentic apostolic succession, you being self-confessed, lying and unholy losers?

Shall we now be so clueless, so lacking in context and history, that we must relive the wars and rewrite the Treaty of Westphalia? Is it really asking too much that GOPers read, I dunno, something with bearing on an issue once in a blue moon?

I am 100% confident that that will not be the nature of the ruling.

The ruling will be based on the nature of the products produced, the services provided, or, in the case of renting a facility, the nature of the event for which the service is rented.

The identity, including religion, sexual orientation, or other protected class, of the customer will not be part of the ruling, except possibly to affirm that states may indeed pass laws protecting those classes.

In the case of Mr. cake baker, what that means is that they will decide whether he can be compelled to produce a particular sort of cake. Having produced that cake, he will be obliged to sell it to whoever wishes to purchase it.

The right wing will try to get them to go a little bit further, probably saying that producing a product for a given event constitutes an interference with religious freedom, even if the product is a standard, "off the shelf" item. I doubt they will win that, though. The difficulty for the court will be trying to thread a needle that protects freedom of expression, but doesn't allow discrimination in cases where there is no real expression, or no meaningful participation in a religious activity.

 

[Mike!]

Oh, and the same baker undermined his "sanctity of marriage" argument when he made cake for two dogs. From the ACLU:


Hypocrite.

Were the dogs the same sex?

 

[C_Felix]

I am 100% confident that that will not be the nature of the ruling.

The ruling will be based on the nature of the products produced, the services provided, or, in the case of renting a facility, the nature of the event for which the service is rented.

The identity, including religion, sexual orientation, or other protected class, of the customer will not be part of the ruling, except possibly to affirm that states may indeed pass laws protecting those classes.

In the case of Mr. cake baker, what that means is that they will decide whether he can be compelled to produce a particular sort of cake. Having produced that cake, he will be obliged to sell it to whoever wishes to purchase it.

The right wing will try to get them to go a little bit further, probably saying that producing a product for a given event constitutes an interference with religious freedom, even if the product is a standard, "off the shelf" item. I doubt they will win that, though. The difficulty for the court will be trying to thread a needle that protects freedom of expression, but doesn't allow discrimination in cases where there is no real expression, or no meaningful participation in a religious activity.

What sort of cake are we talking about? Is Mr. Baker being asked to make a gay cake?

"They" wanted a wedding cake with their names on it.

The cake is just an object.

I had another thread of logic, which I forgot.

Something along the lines of, "He's being asked to produce a cake from his pre-determined selection, and write two names on it. How does who is going to consume it have anything to do with his religion?"

There was more to it than that....Damned America's Got Talent distracted me.

 

[JoeMorgue]

Here's my whole issue with this.

In most cases (insert unnecessary acknowledging of the multitude of nested legal exceptions to prevent pedantics and nitpicking here) most businesses in the States retain the right to refuse service for any reason, as in it is perfectly legal in most scenarios for Ted to walk into Bob's Cake and Tackle Shop for a nice slice of pineapple upside down cake and a box of George Anderson's Clear Butt Trout Leaders, as we are all want to do from time to time, and Bob is legally speaking 100% in his right to refuse Ted service without giving a reason.

So given that what would happen, legally speaking, if our homophobic bakers just denied the service but never brought up sexuality or religion or anything else so the Protected Class concept couldn't be invoked? Even if we knew what they were doing if they didn't come out and implicitly say so how on a purely legal level are we going to do anything about it?

I'm... iffy on how exactly we as a society are supposed to walk a legal line where it is okay to refuse service for no reason but not okay to refuse service for a bad reason? It is sort weird that it seems a lot of people think it would be perfectly okay if Bill was forced to bake a cake for Ted because he was gay (in the business sense of he couldn't deny the product/service to Ted based on that) but Bill could refuse to bake a cake for me because he doesn't like my haircut or the brand of car I drive or just because he didn't want to for literally no reason.

I mean functionally this isn't an issue because oddly bigots and homophobes tend to be either too stupid to try and at least be subtle about what they are doing (which let's be honest here would honestly make this whole thing a metric butt ton harder to pin down if they ever actually figure that fact out) or oddly and loudly proud of their own hatred so this doesn't come up as much as I would think it would.